GIBSON v. MENDOCINO COUNTY (1939)

District Court of Appeal, Third District, California.

GIBSON et al. v. MENDOCINO COUNTY.*

Civ. 6301

Decided: December 04, 1939

Mannon & Brazier and James E. Busch, all of Ukiah, for appellant. Taft & Spurr, of Ukiah, for respondents.

Plaintiff husband and wife commenced this action against the County of Mendocino under the provisions of section 2 of 1923 Statutes, p. 675, 1937 Deering, Act 5619, and charged the defendant county with negligence in maintaining the south entrance to the county courthouse. Mrs. Gibson had fallen there and sustained a serious injury to her knee. The case was tried without a jury, and judgment was entered in favor of the plaintiff wife in the sum of $7,000 and in favor of the plaintiff husband for $406.75. This appeal is from such judgment.

The plaintiff's cause of action is based upon the provisions of the act of the legislature of 1923, Stats.1923, p. 675, Act 5619, Deering's Gen.Laws, which is as follows:

“Counties, municipalities and school districts shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public streets, highways, buildings, grounds, works and property in all cases where the governing or managing board of such county, municipality, school district, or other board, officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such street, highway, building, grounds, works or property and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition.” Sec. 2.

The factual structure of the case is so clearly set forth in the opinion of the trial judge in denying a motion for new trial that we have adopted it as part of this opinion, omitting, however, comments which are not statements of fact:

“Plaintiffs' action is one to recover damages arising from personal injuries allegedly suffered by plaintiff Mary Gibson, as the result of the alleged dangerous or defective condition of the southerly entrance and doorway to the Mendocino County Courthouse. The courthouse in question is of the type rather common in northern California, and it might be more accurately depicted by designating it as the ‘Rutherford B. Hayes' period of architecture. The southerly entrance consists of three concrete steps leading to a threshold or ledge 19 inches deep. This threshold is covered by a plate, originally of corrugated iron, which has a natural slope outward and downward from the door jamb of 3/838 of an inch. As the result of the corrugations having been worn off in the central portion thereof, the threshold has an added downward and outward slope of 1/818 inch by reason thereof, giving to the central portion of the plate a total outward and downward slope of approximately 1/212 inch. The entrance door, of solid wood construction, opens inwardly, and is now, and at the time of the accident was equipped with a patented closing device exerting a varied pressure upon the door of from eight to fifteen pounds at various points in the arc of the door swing. Plaintiff, Mary Gibson, a resident of Ukiah for about twenty-five years, was familiar with the doorway in question, with the iron threshold plate, and the fact that the door in question closed without any action upon the part of one using the same. Upon the day of the accident, Mary Gibson had walked down town on an errand, had another purchase to make on Standley Street, which is upon the north side of the courthouse, and started to go from Perkins Street through the southerly door of the courthouse to gain access to said Standley Street. It is not contended that Mary Gibson had any official business to transact in the courthouse upon the day in question, nor does such fact appear from the record. It appears that she was perhaps using the courthouse as a thoroughfare—which fact is not at all unusual. * Thus, Mary Gibson essayed the steps at the southerly entrance to the courthouse and safely ascended to the top and the threshold thereof, where she opened the door and proceeded in. As she stepped in the doorway the fire siren sounded an alarm, and ‘having been burned out once’, she turned quickly, took one step forward (outward) to count the number of blasts of the siren, and while so standing was struck by the closing door and precipitated to the bottom of the concrete steps.”

It is contended by appellant that the evidence is insufficient to show the proximate cause of the injury, and, therefore, insufficient to support the finding that “said injuries were the result of the dangerous and defective condition of said south entrance to said courthouse, and of the negligence of defendant in so maintaining the same, as aforesaid”, and the further more specific finding that “the plaintiff * while standing upon the aforesaid steel plate and attempting to enter said courthouse through the said door at the south entrance thereof, was struck by said door, operated as aforesaid, by the aforesaid self-closing apparatus, causing plaintiff to slip upon the inclined slippery surface of said steel plate”.

It therefore becomes necessary to carefully consider the testimony of plaintiff, who was the sole witness to the accident. For an exact understanding of the physical facts involved, we have incorporated as part of this opinion plaintiffs' exhibit No. 1.

This shows the courthouse door in question, metal plate in front of the doorway, and the worn or smooth spot on said plate. The testimony of plaintiff, bearing upon the manner in which she received her injuries, is as follows:

“Direct Examination:

“A. Well, I opened the door to go in and I pushed it back about half-way or more, and just as I stepped in, the siren blew, and I stopped to count the whistles, because there was no one at home that afternoon, and I stepped inside one step, I think, and then when the siren blew, I turned around right quick to see what I could see and hear, and I stepped forward, I think, on to the plate, and the door pushed to; it come to very slow, and then all at once it give me a push and pushed me off and threw me out.

“Q. I show you a picture, Mrs. Gibson, and ask you if you recognize the scene shown in that photograph? A. Yes.

“Q. What is it? A, Well, it's the door of the courthouse.

“Q. The one that you were entering when your accident occurred? A. Yes.

“Q. Had you passed through that door prior to that time? A. Yes, several times.

“Q. Did you ever notice that self-closing apparatus on the door? A. Well, I never noticed it particularly, because I always pushed the door open and went directly in and went on.

“Q. Did you notice this smooth place on the step there? A. Yes, I noticed that, yes.

“Q. What is your best recollection about it? Do you know whether you got inside the threshold or not? A. Well, I think I did, I got just inside, just about one step.

“Q. Do you remember opening the door? A. Yes.

“Q. Now, where were you when you were struck? A. Well, I was standing right in the door.

“Cross–Examination

“Q. And do you understand that the door swings from inside—that that door does not swing out across the iron plate at all, does it? A. No.

“Q. It stops at the threshold, and the threshold is at the north side of the iron plate? A. Yes.

“Q. Now, Mrs. Gibson, will you tell us just how the accident occurred? A. Well, I got inside the door, pushed the door open and stepped inside, I suppose I stepped on that step, you know, and the siren blew just as I got inside the door, the door was about half-open, I turned around to count the whistles, you know we were burned out once, and ever since then I have been anxious about a fire, there was no one at home there that day, and I turned around and faced the street to count the number of whistles, and then all of a sudden the door gave me a push and just threw me out just like you would throw out a bucket of water.

“Q. You had gotten off of the concrete steps entirely then? A. Yes, I was up inside the courthouse.

“Q. You had crossed the threshold? A. Yes.

“Q. At the door there is a wooden strip along there that marked the bottom of the door, we will refer to that as the threshold? A. Yes, I got inside.

“Q. Both feet? A. Yes.

“Q. Had you given the door a shove? A. I gave the door a push and pushed it about half-way back.

“Q. And then just after you had pushed the door half-way back and when both of your feet were on the courthouse floor and inside the door you heard the siren ring? A. Yes.

“Q. And then you stopped and turned around, did you? A. Yes.

“Q. So that you were facing Perkins Street? A. Yes.

“Q. And where did the door—where did the door hit you, on the back or buttocks or where? A. I wouldn't say as to that; just shoved me out on the street, never struck the steps at all, threw me about six feet out on the walk.

“Q. You weren't on that iron threshold at the time, were you? A. I think I was.

“Q. You mean at the time the door struck you? A. Yes, I think I was standing right on it.

“Q. With both feet? A. Yes, both feet, yes. Of course I got inside, didn't get any further than just inside the door.

“Q. That threshold, for your information, I mean this iron plate is just inside the threshold? A. Yes. Of course I could not swear that I was standing right square on it.

“Q. A little while ago you said both feet were inside the threshold when you turned around? A. Yes, I was inside with both feet, of course, I stepped right inside when I opened the door.

“Q. Both feet were inside then when the door struck you? A. Yes, sir.

“Q. And at the time the door struck you it struck you on the back, did it? A. It must have; I don't know how else.

“Q. At least your back was toward the door when it did strike you? A. Yes.

“Q. What happened then? A. Well, it threw me out on the walk about six feet out.

“Q. When the door struck you, throwing you out, did you touch any of the steps at all? A. I don't think so.

“Q. The top step? A. No, I don't think so; throwed me clear of the steps right on the sidewalk about six feet away. I just picked myself up and crawled back on the curb, and sat down and a girl ran out.

“Q. Now, you say that the door struck you with such force that you were knocked from inside the door clear out onto the sidewalk? A. Yes, onto the walk, about six feet out.

“Q. And you don't think that after you were struck by the door that you touched either the iron plate or any of the steps? A. No, I just cleared the whole thing.”

From the foregoing it appears that the only reasonable conclusion to be reached was that plaintiff was inside the building when she was struck. The door swung inwardly, making it physically impossible for it to have come in contact with her person if she were standing outside, and upon the metal plate. (See attached photograph.) Her positive testimony confirms this explanation. She says that after she was struck she did not touch the steel plate or any of the steps—“I just cleared the whole thing.” The finding that she was struck while standing upon the steel plate is clearly not supported by any evidence in the record.

There is no finding to the effect that the door was defective or dangerous. There is a finding that the self-closing apparatus, at said time and during all of said times herein mentioned, exerted a sudden and powerful thrust outward in closing said door”, but it is a matter of common knowledge that all such contrivances, in order to function properly, exert a similar force. Furthermore, plaintiff testified that she had used the door a number of times preceding the accident. In any event, the finding of negligence is predicated upon a combination of two factors: the “sudden and powerful thrust” upon the door by the closing apparatus, and the fact that plaintiff was standing upon the smooth or worn place existing upon the metal plate. As we have indicated, there is no evidence to sustain a finding that plaintiff was standing upon the plate. As to the condition of the door, the statute quoted above requires plaintiff to plead and prove either a “dangerous or defective condition” existing upon the property. There is no allegation in the complaint to the effect that it would, on account of a defect, slam shut with such violence as to knock plaintiff off her feet. Neither is there any finding to that effect, or to the effect that the door functioned improperly, or in a manner different from other doors similarly controlled. Under the allegations of the complaint, a case of negligence could not be made out unless plaintiff was standing upon the worn spot when struck. Conversely, if she was standing upon the worn spot, she could not have been struck by the door which opened inwardly. As the evidence does not support a finding to the effect she was standing upon the metal plate when struck, there is no liability upon the part of the county.

Conceding that the worn spot on the metal plate was a dangerous or defective condition within the provisions of the statute mentioned, the evidence fails to show that such condition had any connection with the infliction of the injury upon plaintiff, and thus the case fails to come within the rule that “the burden rests upon the plaintiff to show by a preponderance of evidence, not only that the defendant was guilty of negligence as alleged in the complaint, but that such negligence was the proximate or a concurring proximate cause of the injury”. 19 Cal.Jur., p. 696.

We have examined the entire record, and are satisfied that the proof of negligence here falls far short of the minimum required by law, and that the county should not be compelled to respond in damages for the injuries sustained by respondent.

The judgment is reversed.

Mr. Justice TUTTLE delivered the opinion of the court.

We concur: PULLEN, P.J.; THOMPSON, J.